|
Advanced Search Options
Case Laws
Showing 301 to 320 of 1760 Records
-
2015 (9) TMI 1468
Job-work - Cenvat credit - credit attributable to services rendered by Unit-II was taken in the books of accounts of Unit-I - unit II is undertaking the job work activities for the Unit I and the finished goods manufactured in the Unit I is removed from the factory on payment of appropriate Central Excise Duty - Held that:- since both the Unit I and unit II belonging to the appellant are interlinked, the services utilized by one unit can be taken by the other unit. The cenvat statute in Rule 7 has provided that the input service distributor may distribute the credit among its other manufacturing units. The restrictions contained in the said rule have no application to the facts of this case. The statute specifically provides for taking of cenvat credit upon fulfillment of the conditions that the input service has been received and utilized for the intended purpose and in absence of any specific findings that the credit has not been mis-utilized by the appellant, credit should be allowed to Unit I, even if, the input services have been provided to the Unit II.
Sub-rule (1) of Rule 3 entitles a manufacturer to take cenvat credit of service tax paid on any input service received by the manufacturer of the final product. In the present case since the ultimate finished product manufactured in the factory of Unit I who removed the goods on payment of Central Excise Duty. The job worker unit II only manufactures the intermediate goods and both the units are belonging to one company, cenvat credit cannot be denied. Rule 7 of the Cenvat Credit Rules also entitles a manufacturer to take cenvat credit of service tax, even if, the amount has been paid by some other unit or the office of the manufacturer located elsewhere. The issue is squarely covered by the decision of Tribunal in the case of Greaves Cotton Ltd. Vs. Commissioner of Central Excise, Chennai-II & IV [2014 (8) TMI 654 - CESTAT CHENNAI] which has been upheld by the Hon’ble Karnataka High Court reported in [2011 (2) TMI 1130 - KARNATAKA HIGH COURT]. Therefore, the appellant is eligible to take cenvat credit on the disputed services and, thus, the impugned order is set aside. - Decided in favour of appellant
-
2015 (9) TMI 1467
Invokation of extended period of limitation - Demand and imposition of penalty - Section 73 of the Finance Act, 1994 - short tax paid - job work activities undertaken by the appellant - period involved is 2006-2007, whereas the SCN has been issued on 16.01.2009 - Held that:- the SCN dated 16.01.2009 has been issued, seeking recovery of service tax for the period of April 2006 to March 2007, which is beyond the period of one year. No specific allegations have been made in the SCN, justifying invocation of the proviso contained in section 73(1) of the Finance Act, 1994. Therefore, I am in agreement with the submissions of the appellant that the SCN is barred by limitation. The service tax demand confirmed in the Adjudication order and upheld in the impugned order is not justified. I find that the various judgments cited by the appellant are squarely applicable to the facts of the present case. The principles decided by the judicial forum with regard to limitation, is that the extended period of limitation entails both civil and criminal consequences and, therefore, must be specifically stated in the show cause notice, in absence whereof, the court would be entitled to raise an interference. In view of the settled position of law that in absence of any specific allegation, alleging suppression, willful misstatement, fraud etc, the demand cannot be sustained beyond the period of one year. - Decided in favour of appellant
-
2015 (9) TMI 1466
Whether the appellant herein, the writ petitioner, can challenge the order dated 31st December, 2012 passed by the Additional Commissioner in the writ jurisdiction on the ground of patent illegality and want of jurisdiction after expiry of the period of limitation prescribed in Section 85(3A) of the Finance Act, 1994 - Held that:- it is a settled proposition of law that an authority under the State should have the power to decide an issue. If the authority lacks jurisdiction, an order passed is non est in the eye of law. Since lack of jurisdiction in deciding an issue goes to the root of the matter, a writ petition can be filed questioning the jurisdiction of an authority to pass an order. So as under Section 85(3A) the maximum time limit to prefer statutory appeal is three months, if the petitioner-company was aggrieved by the order dated 31st December, 2012 on the ground that the authority lacked jurisdiction, being conscious of its rights, it should have filed the writ petition challenging the said order within the said prescribed period of limitation.
It is to be borne in mind that the provision stipulating the period of limitation under Section 85(3A) has to be strictly construed as any other interpretation would defeat the very object of enacting the said provision. If the prayer of the appellant is allowed, it would encourage the litigants to approach the High Court in the Writ Jurisdiction by filing a writ petition at any point of time which would open a floodgate of litigations making Section 85(3A) otiose. - Decided against the appellant
-
2015 (9) TMI 1465
Stay application - notice was returned unserved - Held that:- appellant shall pre-deposit liability of service tax and penalty as per the impugned appellate order dated 11.4.2011 passed by the Commissioner (Appeals), Customs, Central Excise & Service Tax, Indore, within eight weeks and report compliance. In default, the appeal shall dismissed.
-
2015 (9) TMI 1464
Cenvat credit - cenvat credit availed on duties and tax, paid on inputs, input services and capital goods received in the factory for use in or in relation to manufacture of the said final product - issue receipt of the input service in the factory of the appellant under the cover of service tax invoice - Held that:- since the tax paid character of the service and its receipt is not in dispute, I am of the view that cenvat credit cannot be denied to the appellant in absence of any specific/ stipulations contained in the cenvat statute. Further, the jurisdictional authorities at the recipient’s end are not competent to question the activities provided by the supplier of the tangible goods i.e. M/s. AEPL whether amounts to manufacture or it is a service. Since the service tax paid by the contractor M/s. AEPL has been accepted by the Jurisdictional Central Excise Authorities of the supplier. The tax so paid is eligible for cenvat benefit to the appellant in view of the judgment of Hon'ble Supreme Court in the case of CCE vs. MDS Switchgear Ltd. [2008 (8) TMI 37 - SUPREME COURT]. - Decided in favour of appellant
-
2015 (9) TMI 1463
Cenvat credit - availed input service credit towards service tax on full value of crushing charges paid for the entire crushing quantity of iron ore - short receipt of 2258.110 M.T. of iron ore - Held that:- the crushing charges charged by the job workers are confirming to the definition of “input service”. Further, the said service having been received by the appellant and duly accounted for, based on the valid service tax invoice, the statutory requirements contained in the cenvat statute had been duly complied with for taking the cenvat credit. Further, it is found that there is no stipulation or embargo created in the cenvat statute in dealing with such an event for denial of cenvat benefit. Therefore, denial of cenvat credit is not in conformity with the Cenvat Credit Rules. - Decided in favour of appellant
-
2015 (9) TMI 1462
Cenvat credit - service tax on rent for its corporate /head office at Delhi - nexus with the manufacture of the finished goods - Held that:- the show cause notice has been issued seeking denial of cenvat benefit on the sole ground that there is no nexus between the input service and the finished goods manufactured by the appellant. Since the said allegation levelled in the show cause notice was dropped by the Commissioner (Appeals) by holding that there is nexus between the input service and the finished goods manufacture by the appellant, the demand cannot be sustained. Since the demand has been confirmed by the lower authorities on a ground which is beyond the show cause notice, the demand cannot be fastened against the appellant. Therefore, the impugned order is set aside. - Decided in favour of appellant
-
2015 (9) TMI 1461
Whether, the Commissioner (A) is justified in setting aside the adjudication order and dropping the duty demand on the ground that extended period of limitation cannot be invoked - generation of unwanted material, namely, product i.e. “waste alkaline water” during the course of manufacture of Zirconium Carbonate and Zirconium Oxide - Held that:- a perusal of the letter would reveal that the appellant had no intension in suppressing the facts from the Department with the motive of defrauding the Government Revenue. The said fact is evident from the letter itself, wherein the respondent had specifically mentioned while applying for the registration that the waste alkaline water were also generated during he course of manufacture of the final product, which cannot be stored because of pollution control norms and are disposed of as per mandates of the statute framed by the Government.
Since the appellant in very categorical terms has intimated the Department regarding generation of the waste material and disposal of the same from the factory premises, the allegations levelled in the show cause notice and the duty demand confirmed in the adjudication order by invoking the extended period of limitation is not proper and justified. It is an admitted fact on record that the activities of the respondent were known to the Department in the month of September, 2004 and thereafter the SCN was issued on 07.08.2007, which is beyond the normal period of one year from such relevant date. Therefore, the proceedings initiated for confirmation of the demand is barred by limitation of time. - Decided against the Revenue
-
2015 (9) TMI 1460
Deduction under section 80-IA - Held that:- Assessee is entitled to deduction under section 80-IA without setting off the losses/unabsorbed depreciation pertaining to the windmill. See Velayudhaswamy Spinning Mills P. Ltd. v. Asst. CIT [2010 (3) TMI 860 - Madras High Court ]
-
2015 (9) TMI 1459
Assessment u/s 153A - Held that:- Section 153A does not authorise the making of a denovo assessment in this particular assessment year. While under the first proviso, the AO is empowered to frame assessment for six years , under the second proviso only assessments which are pending on the date of initiation of search abate. The effect is that completed assessments do not abate. The assessments can be said to be pending only if the AO is statutorily required to do something further. If the section 143(2) notice has been issued, the assessment can be said to be pending. However the assessment in respect of a return processed u/s 143(1) is not pending because the AO is not required to do anything further about such a return. The power given by the first proviso to assess income for six assessment years has to be confined to the undisclosed income unearthed during search and cannot include items which are disclosed in the original assessment proceedings . See Commissioner of Income Tax (Central) -III Versus Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT ]. Thus the addition has been rightly deleted and there is no reason for interference with the order of Ld. CIT(A). - Decided against revenue.
-
2015 (9) TMI 1458
Requisites of Section 153-C satisfaction - Held that:- No addition can be made in the assessment being framed u/s 153A, when there is no incriminating material or assets seized during the course of search. The finding of photocopies in the possession of a searched person does not necessarily mean and imply that they “belong” to the person who holds the originals - Possession of documents and possession of photocopies of documents are two separate things SEE Pr. Commissioner of Income Tax v. Natural Products Bio Tech Ltd [2015 (8) TMI 1286 - DELHI HIGH COURT] - Decided against revenue
-
2015 (9) TMI 1457
Whether in the facts and circumstances of the case, the assessment order passed beyond three years for A.Y. 2005-06 is sustainable in law? - the issue raised in this appeal is no longer res integra and stands concluded by the decision of this Court in State of Punjab and another v. M/s Des Raj Bhim Sain [2012 (7) TMI 862 - PUNJAB AND HARYANA HIGH COURT] - the present appeal is allowed and is disposed of in the same terms as in M/s Des Raj Bhim Sain's case (supra).
-
2015 (9) TMI 1456
Rate of tax on manufacturing and sale of Linear Low Density Polythene Bags (L.L.D.P.E) - The case of the opposite party is that they are manufacturers of LLDPE bags. According to them H.D.P.E. and LLDPE bags are the same. They are used as packing materials. It is the further case of the opposite party that during the relevant year such commodity being under entry No.129 of the Schedule of the Sales Tax Act is not assessable @ 8% on sales under Entry No.136 but at the rate of 4% on sales.
Held that:- the impugned order suffers from inadequacy and having failed to exercise the jurisdiction vested on them are liable to be modified. We, therefore, of the view that the commodity of the opposite party being assessable at the rate of 4% of sales tax under Entry No.129 of the Act, we, hereby, direct learned Assessing Authority to assess the tax liability after considering the commodity of the opposite party under entry No.129, exigible at the rate of 4% of sales tax. - Decided in favor of assessee.
-
2015 (9) TMI 1455
Incidence of tax - Held that:- The activity of outward transportation occurred prior to April 2008. Once the activity had carried out, the incidence of tax arose on the date of carrying out the activity. Therefore, all consequential provisions of law applies on that date. Accordingly, appeal is allowed.
-
2015 (9) TMI 1454
Reassessment - defect in the returns - petitioner submitted that the show cause notice came to be issued without pointing out any discrepancies but simply extracting the report forwarded by the enforcement wing officials. - In reply, the petitioner filed detailed objections on 13.07.2015 meeting out each and every aspect of the irregularities pointed out in the show cause notice and also sought for perusal of all the books of accounts as required by the officials. Without considering the same and without affording an opportunity of hearing to the petitioner, the impugned orders came to be passed. Hence, the petitioner is before this Court seeking for the relief as stated above. - Held that:- Court is inclined to set aside the impugned assessment orders and remit the matter to the assessing authority. - Accordingly, the impugned assessment orders are set aside and the matter is remitted to the assessing authority for fresh consideration.
-
2015 (9) TMI 1453
Levy of penalty for abetment - involvement of smuggling of goods- intact garments in the name of old completely pre-mutilated garments would be fraudulently cleared from ICD, Tughlakabad (TKD), even without examination by Customs Authority. - Held that:- The appellant is manager of M/s Quick Clearing Agency, CHA and a partner in M/s PH Logistics in which the other partner was Mr. Narendra Singh. He directly and actively participated in the smuggling in this case is evident from para 46.4 of the impugned order, the contents of which are not being repeated here for brevity. The said para clearly brings out that as per the appellant s own statement - Having regard to the nature of impugned goods and in view of the fact that their value was ₹ 1.13 crores, we are of the view that the penalty imposed by the primary adjudicating authority is not unreasonable or arbitrary. - Appeal dismissed - Decided against the appellant.
-
2015 (9) TMI 1452
Expenditure towards brokerage, eviction charges and cost of improvements disallowed - Held that:- Learned counsel is unable to point out to relevant material constituting legal evidence over the claim of expenditure incurred by the petitioners and in that view of the matter, no exception can be taken to the reasons, findings and conclusion arrived at by the authorities in the orders impugned calling for interference. - Decided against assessee.
-
2015 (9) TMI 1451
Scheme of merger challenged - Held that:- We find that other than the eight shares held by the appellant - Shri H.K. Chadha, 99.99% shareholders are in agreement with the merger. All creditors, bankers etc. of the respondent company have also approved the merger and there is no objection at all by them till date to the functioning of the merged company. The appellant holding merely eight shares is litigating as he is clearly peeved at his removal as statutory auditor and that the petition as well as appeal against the merger has been filed maliciously and malafide.
The appellant found that by statutory operation, he being a shareholder, could not continue as the statutory auditor of the respondent no.1. He then dishonestly tried to perpetuate this appointment by setting up a false claim of transfer of his shareholding to his son Shri Raman Chadha. Much litigation, as extracted above, was generated, clearly at the instance of the appellant utilising the name of his son as a shield.
From the above narration of facts, we find substance in the contention of Mr. Alok Agarwal, learned counsel for the respondent that the objections of the appellant were motivated and malafide and stem out of malice because of his removal as a statutory auditor. A Chartered Accountant by profession, such actions on the part of the appellant are in utmost bad faith. For this reason, apart from the appeal being devoid of legal merit, the appellant deserves to be burdened with heavy costs at ₹ 50,000/- to the contesting respondent. The appellant shall additionally deposit ₹ 25,000/- as costs with the Delhi High Court Legal Services Committee for burdening this court with this malafide mischievous appeal. These costs shall be deposited within four weeks from today.
-
2015 (9) TMI 1450
Offence punishable under Sections 302 and 201 of the Indian Penal Code, 1860 - applicability of 'last seen together’ theory - Held that:- The prosecution story relies upon the ‘last seen together’ theory, which resulted into the death of Ganesh. This Court has time and again laid down the ingredients to be made out by the prosecution to prove the ‘last seen together’ theory. The Court for the purpose of arriving at a finding as to whether the said offence has been committed or not, may take into consideration the circumstantial evidence. However, while doing so, it must be borne in mind that close proximity between the last seen evidence and death should be clearly established. Yet, the prosecution has failed to prove the evidence which establishes the ‘last seen together’ theory beyond reasonable doubt to prove the guilt of the accused. The prosecution merely proved the motive which could have compelled the accused, and that the accused went to the bar with one other person, but the identity of that other person is not clearly established at all. The post-mortem report fails to specify any approximate time of death and in light of the recovery of the dead body on 20.01.2001, after 4 days, which is not a small gap since the deceased disappeared on 16.01.2001, it is not appropriate to convict the accused when his role is not firmly established.
-
2015 (9) TMI 1449
Guilty of murder - whether the courts below were right in invoking the “last seen theory ” - conviction of the accused-appellants under Sections 302 and 201 IPC and sentence of life imprisonment imposed on each of them with a fine of ₹ 2,000/- with default clause and also two years rigorous imprisonment with a fine of ₹ 500/- with default clause respectively - Held that:- In view of the time gap between Manoj left in the truck and the recovery of the body and also the place and circumstances in which the body was recovered, possibility of others intervening cannot be ruled out. In the absence of definite evidence that appellants and deceased were last seen together and when the time gap is long, it would be dangerous to come to the conclusion that the appellants are responsible for the murder of Manoj and are guilty of committing murder of Manoj. Where time gap is long it would be unsafe to base the conviction on the “last seen theory”; it is safer to look for corroboration from other circumstances and evidence adduced by the prosecution. From the facts and evidence, we find no other corroborative piece of evidence corroborating the last seen theory.
In case of circumstantial evidence, court has to examine the entire evidence in its entirety and ensure that the only inference that can be drawn from the evidence is the guilt of the accused. In the case at hand, neither the weapon of murder nor the money allegedly looted by the appellants or any other material was recovered from the possession of the appellants. There are many apparent lapses in the investigation and missing links:–(i) Non-recovery of stolen money; (ii) The weapon from which abrasions were caused; (iii) False case lodged by PW-2 alleging that he was being robbed by some other miscreants; (iv) Non-identification of the dead body and (v) Non-explanation as to how the deceased reached Maniya village and injuries on his internal organ (penis). Thus we find many loopholes in the case of the prosecution. For establishing the guilt on the basis of the circumstantial evidence, the circumstances must be firmly established and the chain of circumstances must be completed from the facts. The chain of circumstantial evidence cannot be said to be concluded in any manner sought to be urged by the prosecution.
Normally, this Court will not interfere in exercise of its powers under Article 136 of the Constitution of India with the concurrent findings recorded by the courts below. But where material aspects have not been taken into consideration and where the findings of the Court are unsupportable from the evidence on record resulting in miscarriage of justice, this Court will certainly interfere. The “last seen theory” seems to have substantially weighed with the courts below and the High Court brushed aside many loopholes in the prosecution case. None of the circumstances relied upon by the prosecution and accepted by the courts below can be said to be pointing only to the guilt of the appellants and no other inference. If more than one inferences can be drawn, then the accused must have the benefit of doubt. In the facts and circumstances of the case, we are satisfied the conviction of the appellants cannot be sustained and the appeal ought to be allowed.
............
|
9911796707
